Land and Environment Court of New South Wales CITATION : Planning Workshop Australia v Blacktown City Council [2001] NSWLEC 266 revised - 13/12/2001 APPLICANT Planning Workshop Australia PARTIES : RESPONDENT Blacktown City Council FILE NUMBER(S) : 10767 of 2001 CORAM: Cowdroy J KEY ISSUES: Development Consent :- Energy Services Corporations Act 1995 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980 CASES CITED: DATES OF HEARING: 19/11/01, 20/11/01 DATE OF JUDGMENT: 11/30/2001 APPLICANT Mr M Tobias QC with Mr A Galasso (Barrister) SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr M McEwen (Barrister) SOLICITORS Michael Sillar JUDGMENT: 13 IN THE LAND AND MATTER No. 10767 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 30/11/01 Planning Workshop Australia Applicant v Blacktown City Council Respondent JUDGMENT 1. Integral Energy ("the corporation") is a State owned corporation incorporated under the Energy Services Corporations Act 1995. Its shareholder is the New South Wales government. The corporation is the electricity supplier of Greater Western Sydney, the Illawarra and the Southern Highlands. Its predecessor was known as Prospect County Council, which was an instrumentality of the Crown. The corporation is not an instrumentality of the Crown. 2. By Notice of Determination 8421 the respondent ("the council") granted development consent ("the consent") for development of Lot 1 DP 747150, Huntingwood Industrial Estate ("the site") of a communications and administrative service centre as a 'Public Building'. The site was located in an area affected by the provisions of the Blacktown Local Environmental Plan 1988 ("the BLEP") which was originally gazetted on 28 October 1988. The BLEP adopts the Environmental Planning and Assessment Model Provisions 1980 ("the Model Provisions"). Pursuant to the Model Provisions a public building is defined as:- a building used as offices for administrative or other like purposes by the Crown, a statutory body, a council or an organisation established for public purposes. 3. Pursuant to the consent a substantial building ("the building") was erected on the site. 4. By Development Application 1172 ("the application") dated 3 March 2000 the applicant applied for development consent in respect of the building. The description of the proposal ("the proposal") is as follows:- Change of use application from 'public building' to commercial premises of a nature and size not suited to location in existing buildings in Blacktown Business Zone (including the proposed use of part of the premises by parties other than Integral Energy). 5. By Notice of Determination dated 5 June 2000 council refused the application upon the following grounds:- 1. No end user has been specified for the vacant space indicated on the ground floor as being available for lease, and accordingly, pursuant to Section 4.2. of the Blacktown Development Control Plan 1992 (Huntingwood Industrial Estate) there is insufficient information for Council to adequately assess the environmental impacts of the development or to determine whether the proposed commercial use is permissable [sic] under Blacktown Local Environmental Plan 1988. 2. No details have been provided of the number and location of car parking spaces allocated to the future tenants of the vacant space on the ground floor proposed to be leased to future tenants. 3. No details have been provided of the arrangements for loading and unloading of goods for the future tenants of the vacant space on the ground floor proposed to be leased to future tenants. 3. The applicant appeals to this Court against the refusal of the council to change the use of the building. Zoning controls 4. The BLEP was amended on 22 September 1995 ("amendment 72"). Amendment 72 created a new zone known as Zone 4(d) Huntingwood Industrial Zone ("the 4(d) zone") which included the site. The objectives of the 4(d) zone are contained in cl 1 of table for such zone. The relevant objectives are as follows:- (a) to recognise the special character and function of the Huntingwood Industrial Estate and provide for a new industrial zone applicable exclusively to the Huntingwood Industrial Estate; … (g) to enable development for the purpose of commercial offices only where it is associated with, and ancillary to, light industrial, warehousing or like use of the same land, or where it serves the daily convenience needs of the local workforce, or where location of the commercial offices in a business zone is not practical by virtue of the nature and scale of the use. 8. The site is also affected by the provisions of Blacktown Development Control Plan 1992 (Huntingwood Industrial Estate) ("the DCP"). The aims of the zone, in summary, give recognition to the special character and function of the Huntingwood Industrial Estate ("the estate") and to ensure that new development in the estate is of a high standard, is compatible with existing development and incorporates best practice environmental management techniques. The purpose of the 4(d) zone is intended to provide for the construction of large, purpose-built light industrial and warehousing premises and to permit office style developments that, 'due to the nature and scale of the uses intended for them, are not suited to the City's [Blacktown's] commercial centres'. 9. In respect of light industrial development the DCP emphasises that the onus is imposed upon the applicant to provide 'sufficient information to Council so that Council can ensure that proposed development meets the objectives of the Huntingwood Industrial 4(d) zone'. The DCP incorporates certain uses which the council regards as suitable and relevantly the following uses are included:- · Communications industries; · Computer programming and development industries; · Data storage, research and retrieval 10. The DCP contains provisions for car parking and in respect of Commercial/Office component one space per 40 m2 of gross floor area as defined in the DCP is required. 11. Clause 4.2 of the DCP makes provision for commercial premises in the 4(d) zone and acknowledges that such uses are permissible with council consent provided that the council is satisfied by the applicant that the proposed commercial component is contained in one of three categories. The relevant category is as follows:- · Commercial uses whose location in a business zone is not practical due to the nature and scale of the use intended for the building such as activities involving larger-scale entry, storage and retrieval of data, even if there is no manufacturing or industrial use proposed in conjunction with the commercial use. 12. The DCP emphasises the following:- A critical factor in determining the suitability of proposed commercial uses for location in the 4(d) zone will be whether the use offers a service that requires direct exposure to the general public for its successful operation . If such exposure to the general public is required the proposed use will not be permitted in the Huntingwood Industrial Estate. With respect to commercial uses it should be noted that the onus is clearly on the applicant to provide sufficient information to demonstrate to Council that the proposed use meets the above criteria for location within the Huntingwood Industrial Estate (emphasis in original). The building 13. The building comprises a single two-storey modular building with basement car parking and a 50 m high communications tower for microwave communication link purposes. The building has a gross floor area of 22,102.7 m2. The building contains three common atria which allow access to all wings of the building and would enable subdivision of the floor plates which are generally greater than 1,000 m2. 14. The building has been constructed with large unimpeded floor plates and has incorporated features within it which are unusual. Such features include infinite access floors; systems redundancy which ensures maintenance for power and communications in the event of failure of the usual power supply; a communications system of international standards and codes; full security; provision for 24 hours per day seven days per week operation; and a fire safety system suitable for technically advanced commercial facilities. Evidence of the applicant 15. The evidence of Mr Steven Blencowe, Business Consultant, establishes that the building comprises a technically advanced commercial facility. In his opinion it is suitable for uses such as data preparation and processing; communications; information technology and services; scientific and high technology research and development; computer services, media related facilities, high technology electronic engineering services; and medical equipment and supplies. 16. Mr Blencowe was of the opinion that such uses could not be accommodated in any of the buildings available in the Blacktown City commercial centres ("the CBD"). 17. Mr Peter Layshon, Research Analyst and Town Planner, provided his report concerning the availability of floor space in the CBD which could accommodate the uses identified by Mr Blencowe. Mr Layshon considered eight sites in which vacant space existed or which might become available in the foreseeable future. Mr Layshon concluded that such space could not be compared with that of the site because of a variety of reasons including the age of the buildings; the layout of the buildings, which did not allow for operations to be conducted on one level as existed at the site; and the absence of the specific technological features, such as access flooring, high floor to ceiling heights, absence of appropriate air conditioning, lighting intensity and absence of microwave digital transmission and fibre optic trunk mains. 18. In summary none of the buildings reviewed by Mr Layshon provided the facilities which existed at the site and which would be suitable for the uses identified by Mr Blencowe. Further, there was no evidence that appropriate space would become available in the CBD in the foreseeable future. 19. Mr Layshon also testified that there would be impediments to the development of a new building in the CBD of an office development of the type represented by the site because of the cost of land in the CBD. Such costs currently range between $1,500 and $3,000 per m2 of site area whereas land values in the Estate range between $170 and $200 per m2 of site area. 20. Mr Layshon also testified that the construction costs of a building equivalent to the site would be significantly higher than for a conventional building. He was of the opinion that such costs, when added with the higher costs for the acquisition of land in the CBD would result in higher rents for businesses such as those conducted by the applicant, and would result in the relocation of those businesses to other districts. 21. Michael Colston, Traffic Engineer, provided evidence concerning the provision of car parking spaces at the site. He concluded that the site would require 533 car spaces to comply with the specification of the DCP. The site currently provides 706 car parking spaces which exceeds council's requirements. Mr Colston noted that the consent only required provision of 452 spaces. 22. Mr Colston also reviewed the service access to the building and the facilities associated with the loading dock and goods lift. He noted that it would be possible to provide service access to any leased area of the building without interfering with other leased areas. 23. Associate Professor Sonja Lyneham, Consultant Town Planner, considered the reasons for the council's refusal of consent. Professor Lyneham exhaustively researched each issue and concluded that a change of the use of the building would ensure that it would be used to its full physical and economic potential and would have no adverse impacts on surrounding uses. She considered that the proposal would allow the opportunity to create 'new and diverse employment opportunities benefiting the Blacktown local government area'. Submissions of the council 24. Council submitted that the application did not seek approval for any particular use for the building, but rather a range of commercial uses. The council submits that a full and proper application for each proposed use must be made to council to enable it to assess compliance of the proposed use with the requirements of the DCP and the suitability of the site for such use. In the absence of such applications, council says that it could not be satisfied that the proposed uses qualify for the exemption in the 4(d) zone. Evidence of the council 25. The council relied upon the evidence of Glenn Raymond Apps, Senior Statutory Planner of the council. 26. Mr Apps considered that the facilities provided at the building were not unique and could be incorporated in buildings which might be located, either now or in the future, in the CBD. As an example he referred to the specialised nature of the council chambers building in Blacktown. However, he was unable to identify specifically any building which could accommodate 1,000 m2 upon one level with infinite flooring and the facilities which were available in the building. Findings 27. In January 1993 a discussion paper entitled High Technology Uses in Blacktown's Industrial Areas was prepared by the council. The discussion paper was the basis for the creation by council of the 4(d) zone and of the DCP. The discussion paper acknowledged the need to permit 'high tech' uses in the estate where those uses were substantial and for which 'the cost of acquiring a large site in commercial areas would be prohibitive'. 28. The discussion paper considered the approaches that might be adopted in determining whether a 'high tech' use would qualify for consent in the 4(d) zone. Those options were to adopt either a definitional or discretionary approach. The report recommended that it would be preferable to make no definition of 'high tech industry' but to consider each application on its merits to ascertain whether the use qualifies for consent in the 4(d) zone. It is apparent that council adopted the recommended approach, by its implementation of Amendment 72 to the BLEP. 29. The building contains features which are technically advanced and which are not available at present in any other locality in the CBD. Further, the Court is satisfied that the cost of construction of a building containing such a high degree of suitability for advanced technical uses would be exceptional and likely to be commercially prohibitive. The incorporation of a communications tower having line of sight microwave links and dual fibre optic links; security including hardened facilities including provision for terrorist attack, crash protection and earthquakes; infinite floor and ceiling access; continuous power support; and flexible design are but some of the exceptional facilities which are available in this building. The single level floor space of approximately 1,000m2 also renders the building especially suited to specialised uses which do not require proximity to other commercial zones. 30. The Court is satisfied that the operations conducted at the site could not be carried out appropriately in any other building currently existing in the CBD. The nature and scale of the activities currently being conducted in the building are therefore compatible with the objectives of the 4(d) zone. Orders sought by the applicant 31. The applicant seeks consent for the use of the building as an operations centre for Integral Energy (including ancillary administrative, service and maintenance, staff related child care, staff shop, staff banking and credit facilities, staff refreshment room and related staff facilities) which is currently conducted in the building. Council does not oppose such application and has not sought to restrain such use even though the use of building has not been for that of a 'public building' since 1995. 32. In addition the applicant seeks consent for use of the premises for the following uses:- · Information technology and service centres including disaster recovery centres and internet data centres; · Data preparation and processing; · Telecommunications and call centres including switching centres and broadcasting facilities; · Multimedia centres and media related services including digital media production and post production; · Research and development facilities, including laboratories and biotechnology facilities for scientific, medical, electronic engineering and high tech industrial services. 33. The uses currently conducted in the building satisfy council's requirements. However, any other use contained in the list of uses sought by the applicant have not been the subject of any assessment by the council or the court. As foreshadowed in the discussion paper each application of a 'high tech' development in the 4(d) zone is to be based on individual merit. 34. The council remains responsible for ensuring that the zoning requirements of the BLEP are maintained. The exception permits commercial offices in the 4 (d) zone provided certain criteria are fulfilled. The council must therefore be satisfied that each use is compliant with such criteria. However, if consent were granted for all of the uses proposed by the applicant the council would be deprived of any opportunity to make the necessary assessment of the satisfaction or otherwise of the criteria prescribed by cl 4.2 of the DCP. 35. Accordingly, it would be inappropriate for consent to be granted, subject to conditions, for all of the uses proposed by the applicant. The pre-condition for use in the 4(d) zone remains the satisfaction of the applicable criteria. Only when these are satisfied is the use permissible in the 4(d) zone. The consideration of permissibility is a threshold issue. It cannot be made the subject of conditions because consent can only be granted if a use is permissible in a zone. Accordingly, it is the specific use which must be considered in order to determine eligibility of such use for the 4(d) zone. If an approval were granted for all of the proposed uses, council would thereby be deprived of control of the site, and a de facto spot re-zoning would result. 36. For the above reasons the Court considers it appropriate to uphold the appeal in respect of any use for which the building is currently being used but must refuse consent for any other use. If other uses of a commercial nature are sought the appropriate application would be required and the consent authority must be satisfied that such use qualifies for consent. Orders 37. The Court makes the following orders:- 1) The appeal is allowed in part. 2) Development consent is granted for the use of the existing premises at 51 Huntingwood Drive, Huntingwood (Lot 1 in DP 827249) for the following purposes:- · Integral Energy operation centre including ancillary administrative, service and maintenance, staff related child care centre, staff shop, staff banking and credit facilities, staff refreshment room and related staff facilities; · Information technology service centres including disaster recovery centres; · Data preparation and processing; · Telecommunications and call centres. · Ancillary administrative services and maintenance, staff related child care centre, staff shop, staff banking and credit facilities, staff refreshment room and related staff facilities used in conjunction with any one or more of the principal uses for which approval is hereby granted. 3) Development consent is granted for the above uses subject to conditions referred to in Annexure 'A' to this judgment. 4) The exhibits be returned. I HEREBY CERTIFY THAT THE PRECEDING 37 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE DENNIS A COWDROY OAM ASSOCIATE Annexure A General Conditions of Consent 1. Any reference in this consent to a Construction, Compliance, Occupation or Subdivision Certificate is a reference to such certificates as defined by Section 109(c) of the Environmental Planning & Assessment Act 1979. 2. This consent relates to the following drawings/details submitted to Council within the Statement of Evidence report prepared by Planning Workshop Australia dated March 2001: Drawing No. Dated 91155 Site Plan Figure A Undated 91155 Basement Plan Figure B Undated 91155 Ground Floor Plan Figure C Undated 91155 Level 1 Plan Figure D Undated 3. This development consent does not authorise the carrying out of any building works. If any building works are necessary to accommodate any use authorised by this consent, then a separate development consent for those building works must be obtained. 4. Any proposal to make any structural changes or add new partitions in association with the proposed use of any vacant space within the existing building shall be subject to obtaining a Construction Certificate with respect thereto. 5. A separate development application is to the submitted for Council's approval for any new advertising signage proposed for the site, such signage to be in accordance with the requirements of Blacktown Development Control Plan 1992, Part H (Huntingwood Industrial Estate). 6. A building in respect of which there is a change of building use must comply with the category 1 fire safety provisions (as defined in part 7B of the Environmental Planning and Assessment Regulation 1994) applicable to the proposed new use. Note: the obligation under this condition to comply with the category 1 fire safety provisions may require building work to be carried out even though none is proposed or required by other conditions of this consent. 7. All required off street car parking spaces and internal roads shall be maintained in a satisfactory and usable manner. 8. All loading and unloading operations are to take place at all times wholly within the confines of the site. 9. The use of the subject site for retail activities is prohibited except with the prior separate approval of Council. 10. No goods, materials, or trade waste are to be stored at any time outside the building other than in approved garbage receptacles. 11. No goods or materials are to be stored, displayed for sale or manufactured at any time outside the building. 12. All landscaped areas are to be maintained at all times in a suitable manner. 13. The use of the approved development shall, at all times, be conducted in a manner consistent with the terms and conditions of this consent. 14. Prior to the occupation of the premises for the purpose of any of the uses authorised by this consent (other than the Integral Energy use), there must be submitted to the Council a description of the proposed use, the identity of the proposed tenants and accompanying information in respect of the location of the use within the premises and the floor area to be occupied by the use, sufficient to establish that the use complies with this consent. The use must not commence until 21 days after the date of lodgement of this information with the Council. 15. Any individual use of the premises in accordance with this consent must occupy a floor area of not less than 1,000m2. 16. All entrance and exit points are to be clearly site posted and visible from both the street and the site at all times. 17. A minimum of 580 off street car parking spaces are to the maintained on site at all times, with each space to be maintained with minimum dimensions of 5.2 metres by 2.5 metres. Each space shall be marked, located and sealed with a hard standing all weather material, and maintained in this condition, to the satisfaction of Council's chief town planner. 18. The carrying out of any new use in accordance with this consent (other than the Integral Energy use) must provide a means for transport of deliveries from the loading dock to the location of the new use. 19. No contaminated waste water or liquid waste is to be discharged into Council's stormwater system. 20. No nuisance or interference with the amenity of the area is to be created by reason of any process or operation on the premises causing the emission of noise, dust, smoke, or any polluted discharged whatsoever. 21. Instructions concerning procedures to be adopted in the event of an emergency are to be clearly displayed on the premises for both public and staff information at all times to the satisfaction of the Council. 22. Car parking spaces shall be allocated and identified for the exclusive use of each of the future tenants of the premises at the rate of one (1) space per 40m2 of Gross Floor Area of the space occupied by that tenant. 23. Appropriate access to loading and unloading facilities shall be provided for each of the future tenants of the premises, commensurate with the needs of that tenant. 24. Any use to which this consent relates must be predominantly dependent for its operation upon the infinite access flooring provided in the existing building. 25. Any use to which this consent relates must not offer a service that requires direct exposure to the general public for its operation. 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